IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for a Revision and Restitutio-in-Integrum under Article 138(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

CA/RII/35/2023 D.C. Mount Lavinia Case No:

P/1144 Vidana Gamage Prema Padmini Renuka

58/3, 3rd Lane, Udahamulla, Nugegoda. Petitioner Vs.

KadawathaKankanamalage Wijesena (Deceased)

No.416, Dewala Road, Depanama, Pannipitiya.

Plaintiff- Respondent KadawathaKankanamalage Tilak Dewapriya No.416, Dewala Road, Depanama, Pannipitiya Substituted -Plaintiff-

Respondent -Vs-

1. (a) A.A. Deyawathi Perera

413, Depanama, Pannipitiya.

(Deceased) 15A. BaragamaAriyabodhi Himi DharmavijayaViharaya, Weera Mawatha, Depanama, Pannipitiya

15B. Wattala Ariyarathana Thero No.415, Dharmavijaya Viharaya, Weera Mawatha, Depanama, Pannipitiya.

(Deceased) 16A. BaragamaAriyabodhi Himi Dharmavijaya Viharaya, Weera Mawatha, Depanama, Pannipitiya.

16B. Wattala Ariyarathana Thero No.415, Dharmavijaya Viharaya, Weera Mawatha, Depanama, Pannipitiya.

And 83 Others.

Defendant-Respondents Before: Hon. D.N. Samarakoon, J.

Counsel: Varuna Nanayakkara instructed by Suneetha M. Edirisinghe Nanayakkara for the Petitioner.

W.R. Jayawardena Herath for the 15(B) and 16(B) Defendant-

Respondents.

P.B. Rajakarunaratne for the 62(B) and 82(B) Defendant-

Respondents.

The other parties although noticed did not take part.

Argued on: On 30.04.2024 learned counsel moved court to dispose this matter on written submissions.

Written submission tendered on: by the Petitioner on 06.05.2024 by 15B & 16B Defendant-Respondents on 06.05.2024 Decided on: 10.05.2024 D. N. Samarakoon J., The case instituted on 10.09.1979 is nearly 45 years old.

Trial was held nearly 20 years later on 22.06.1999.

The District Court decided that, (i) Corpus 11A.03R.36.85P. Plan X5 dated 15.07.1980/Bernard Joseph L.S.

(ii) Judgment 14.12.2006 X6 (iii) Interlocutory Decree 05.07.2017 X7 The petitioner claims rights through the 1st defendant.

Hendrick Perera (deceased) 1st defendant

578x264 (240) ft 19510/04.05.1973 X8 Gunapala Perera Karunadasa Perera

276/05.04.2008 X9 Jagath Senadeera

164/01.09.2015 X.10 Randil Waruna

1028/09.11.2015 X.11 Petitioner The petitioner argues, that, her deed is not pending partition as the “original”

deed in the above pedigree is dated 1973, prior to the institution.

The above is not correct.

Section 66 of Partition Law No. 21 of 1977 says, that, “

Sale, lease or 66.

mortgage pendente lite is void. (1) After a partition action is duly registered as a lis pendens under the Registration of Documents Ordinance no voluntary alienation, lease or hypothecation of any undivided share or interest of or in the land to which the action relates shall be made or effected until the final determination of the action by dismissal thereof, or by the enter of a decree of partition under section 36 or by the entry of a certificate of sale.

(2) Any voluntary alienation, lease or hypothecation made or effected in contravention of the provisions of subsection (1) of this section shall be void:

Provided that any such voluntary alienation, lease or hypothecation shall, in the event of the partition action being dismissed, be deemed to be valid.

(3) Any assignment, after the institution of a partition action, of a lease or hypothecation effected prior to the registration of such partition action as a lis pendens shall not be affected by the provisions of subsections (1) and (2) of this section.

Hence deeds executed after the registration of the lispendence are invalid, unless the partition action is dismissed.

But the lispendence must be registered in the correct folio.

The petitioner says that the lispendence was not registered in the correct folio.

Then again, she says, the folio M 1234/147 was damaged. X.13 He deeds were registered in M 1042/43, M 3133/140 and B 268/92.

Her applications made to the District Court, Provincial High Court exercising civil appellate powers and to the Supreme Court were of no avail.